Wednesday 12 June 1991


Continued in camera

Afternoon sitting

Ministry of Intergovernmental Affairs



Chair: Silipo, Tony (Dovercourt NDP)

Vice-Chair: Bisson, Gilles (Cochrane South NDP)

Curling, Alvin (Scarborough North L)

Eves, Ernie L (Parry Sound PC)

Gigantes, Evelyn (Ottawa Centre NDP)

Harnick, Charles (Willowdale PC)

Harrington, Margaret H. (Niagara Falls NDP)

Malkowski, Gary (York East NDP)

Mathyssen, Irene (Middlesex NDP)

Offer, Steven (Mississauga North L)

O'Neill, Yvonne (Ottawa-Rideau L)

Winninger, David (London South NDP)

Clerk: Brown, Harold


Drummond, Alison, Research Officer, Legislative Research Service

Kaye, Philip, Research Officer, Legislative Research Service

The committee met at 1017 in room 151.


The Chair: I call the meeting to order and welcome you to this meeting of the select committee on Ontario in Confederation. We have a couple of items we need to deal with in public session in terms of discussing and hopefully approving our budget, as well as receiving a briefing from our research staff on a conference that was attended recently. I think after that, my suggestion from the chair and as the result of some discussions this morning at the subcommittee would be that we then go into private session to continue the planning work we have been doing in terms of the next stage of our work. Because of the relative detail we need to get into, I think it is useful to do that in private session.

We have put before you a proposal of the budget. We should point out that this morning we had a meeting of the subcommittee, and the total amount of the budget that is coming forward as a result of that discussion is still the same, that is, $1,056,264.

We would suggest a change. As you recall, we had some discussion around the conference -- here last week and prior to that and also in the subcommittee. We have taken the contingency item, the $400,000 we had placed there pending our discussions on the conference, and are suggesting we break that down, most of it dealing with the conference, $300,000 of that -- $ 100,000 dealing with costs of accommodation, $100,000 to cover travel costs for people who would be attending the conference and the other $100,000 to deal with consultants' fees in terms of some decisions we still need to discuss and make around that -- and then the remaining $100,000 would be a contingency item for the whole budget, which is a normal amount, a normal percentage in terms of a budget of this size. That is the proposal as we discussed it this morning.

We had a little bit of discussion around the issue of people attending the conference and what we would be doing in terms of covering their costs, and our sense is that if we follow the standing order that exists for witnesses appearing in committees, which in effect basically says that people can have their costs recovered if they request that, our sense would be to make people aware of that. Then that should cover any situations where people in fact require assistance. That is something we can work out in more detail as we go into the planning of the conference. That is the sense coming from the subcommittee in terms of the budget. We will put it before you and ask for any discussion on that.

Ms Gigantes: I find that a foolish policy. I cannot imagine a person coming to the conference who could request to have travel and accommodation costs paid not doing that. I think we might as well simply state that we are paying.

The Chair: In effect, I think we would be saying the money would be there. The reality might be that for some of the people who are coming, if they are attached to particular organizations, for example, they might be able to cover the costs or some of the costs. The amount is there. We have budgeted for it. Our sense is that we can cover the costs of all of the delegates, all of the people who would be coming to the conference within that budget if that is necessary. We would certainly be making it clear -- I think there was agreement on that -- to people who would be invited to come that the funds are there and so it is a question of whether people would use them or not.

Mrs Y. O'Neill: I do feel that it is comforting to the people to know that there are standing orders in place in this Legislature that account for this as a regular matter of habit and routine and under which they would be applying for assistance. We have to have some accountability and that, I think, is built into the Legislative Assembly and should be used.

Mr Winninger: This question harks back to one I asked earlier. At the bottom of page 1 of the budget is advertising, three newspaper ads at $25,000 each. Given that we are, I thought, planning to meet with various organizations and go through a selection process for delegates at the conference, are we going to be advertising this conference in the paper? Is that what this is directed to?

The Chair: I am not sure. Mr Clerk?

Clerk of the Committee: It is up to the committee whether it wants to advertise or not.

The Chair: I think it is something we would have to look at. The amount is there in the event that we choose to use it for that or for other advertisement purposes.

Mr Winninger: I see.

The Chair: But we have not made decisions to spend any of those funds at this point.

Other questions or comments? All right, we need a motion to approve the budget.

Mr Bisson: I move that we adopt the budget.

Motion agreed to.

The Chair: All right. The second item that we want to deal with then is that, as you know, a conference took place in Kingston last week or the week before dealing with economic dimensions of constitutional change. I think there has been an outline of that distributed to the members. Alison Drummond from our research staff attended that on our behalf and we have asked her to give us a very brief overview of some of her observations of the conference. I think some of the papers from the conference will be distributed to the members of the committee. As well, we are looking at bringing some of the people who participated in that conference to speak to the committee at future meetings.

Ms Drummond: I have distributed the press coverage that I have been able to get -- there may have been coverage in the Kingston Whig-Standard, but it is not yet at the library -- which is useful. The members may want to look at that.

Rather than give an overview of the themes of the conference, which I thought the media stories did do, I distributed the agenda and I will just quickly go over a little bit about what each paper said. I have copies of all the papers with the exception of Pierre Fortin's one in session 6 on the economic consequences of a sovereign Quebec, which I should be receiving in the next few weeks.

The first paper, the Economic Dimensions of Constitutional Change: A Survey of the Issues, was very upbeat, actually an overview of the issues that the conference was going to be dealing with, making the point that Canadian federalism has been quite economically successful in the past, and that the political reorganization that almost certainly is going to be taking place can be seen as an opportunity to improve Canada's position in the world economy.

The second paper, which Professor Courchene gave, as the title suggests, was more pursuing ideas than presenting a thesis on what he thinks will happen or should happen. A number of the ideas raised in the paper may be of interest to members, particularly his statement that Canada in the late 20th century, after the free trade agreement and other economic changes, is bound much more east-west by social policy and shared values than by strong east-west economic ties.

Another point he made that raised a lot of interest among questioners was the idea that over the last several years the economic policies pursued by the government of Ontario have not been the same as those pursued by the federal government and that the Ontario economy is large enough that this is affecting the national economy. He thought it is a trend that is actually likely to continue.

The third paper, The Design of a Government for an English Canadian State, assumes the separation of Quebec and argues that the rest of Canada -- ROC, as they called it throughout the conference -- should be a strongly unitary state, without a provincial level of government.

The paper Canadian Choices was written by somebody who presented to the Bélanger-Campeau commission, and it is essentially an expansion of the paper he gave to the Bélanger-Campeau commission, arguing for a federal system but with guarantees of political and economic freedom. One of the things he was arguing was for dropping the "notwithstanding" clause to protect minorities in the provinces and in the country.

Mr Brown: Excuse me. That is under Canadian Choices?

Ms Drummond: Yes.

In the fifth paper, The Allocation of Tax Authority in the Canadian Federation, the authors were essentially working with the proposals of the Allaire report, and argued that a shift of expenditures to the provinces will require a significant shift of taxing powers. They suggested some tests for which level would appropriately be taxing -- tying taxation expenditures more closely.

Some Economic Aspects of Political Restructuring, which was the sixth paper given, argued that moving towards much greater provincial powers will lead to greater centrifugal forces in the country and essentially the creation of a series of small states. One of the things that this paper really emphasized was the question of labour mobility, which, these authors argued, would not survive a lot of political decentralization.

The seventh paper, The Constitution and the Social Contract, also was emphasizing this question of labour mobility. They argued that Canada has been a relatively decentralized federation that has been quite successful, but the federal government must have powers to deal with the economic efficiency of the country and equity within the country, specifically transfer payments to less-well-off provinces and, again, labour mobility.


The Division of Powers in Canada took an approach dealing with languages, human capital, and argued that this would be a useful test for what powers should go to Quebec: essentially all powers dealing with human capital, language, culture, retraining and certain social policies.

The ninth paper, called Piecemeal Decentralization, was a case study of environmental regulation. Basically, what it said was that there are economic reasons for decentralizing environmental regulation but political reasons for centralizing it.

The 11th paper was given by Pierre Fortin. That is the one I do not have a copy of. He argued, contrary to some of the other people giving papers at the conference, that economic federalism is not working, and assuming that Quebec does decide to leave the federation, he was arguing that it will have a real incentive to negotiate assets and liabilities in order for it to have credibility in the international finance markets. He concluded that the cost of separation would be significant but manageable, though he did, at the same time, say that a lot of the economic assessments of this sort of issue are not dictated but affected by the political views of the people arguing them.

The 12th paper, Are Bigger Countries Better Off?, used the idea of economic convergence, which is usually used to deal with how quickly countries are catching up with each other. It used some numbers within Canada, treating the provinces as countries. It was very cautious, and actually did not really make any predictions but argued that, generally, greater trade and mobility of ideas tends to improve the economic positions of countries, not an entirely surprising conclusion.

Mr Bisson: I am not sure I understand. He argued that the larger the country, the better the possibility of developing economic trade?

Ms Drummond: He did not argue even that, but he argued that small countries are better off if they have more open borders.

Mr Bisson: Interesting.

Ms Drummond: The 13th paper, on the Bank of Canada, was dealing with some ways of getting regional representation in the Bank of Canada. He argued that there are a lot of issues being dealt with in constitutional negotiations, and this may not be at the top of the list, but that a good deal of regional representation can be gained without constitutional changes.

The 14th paper, on financial regulation, was one of the more technical papers given at the conference. If people are interested in this issue, I can give them a copy, but it was arguing that responsibility for financial institutions is presently split between federal and provincial levels of government. That may not be a particularly good way to do it.

The 15th paper, Alternative Divisions of Federal Assets and Liabilities, took three approaches to this issue, one proposed by the Bélanger-Campeau commission, one essentially on Quebec's share of the population, and a third based on historical benefits.

One of the interesting things about this paper, which was a sort of theoretical paper, was that the questions asked when they talked about "fair" or "proportionate" or "disproportionate" would always take the population share as a norm. That seemed to be one of the conclusions from the questions.

Finally, the 16th paper, called The Quebec Sovereignty Scenario, argued that true customs union requires a good deal of political union and that with political decentralization the economy is likely to become more decentralized. Professors Smith and Lipsey also argued that this may be a reason to create a more positive agenda of removing internal trade barriers to create more political unity.

Mrs Y. O'Neill: May I go back a bit? I would like to ask a little more about paper 15. Was that a technical paper? Were there specifics about major federal government buildings or facilities, or was it much more general?

Ms Drummond: It is really a preliminary exploration of what the numbers would look like for the various regions of the country, taking each of these three approaches, this modified Bélanger-Campeau approach, which based a lot of it on which assets were already in Quebec. But it is very preliminary. What became really clear was that this "historical benefits" approach would penalize the Maritimes very substantially. That was something people were a little uncomfortable with. The Bélanger-Campeau and the per capita approach actually were not all that different.

Mrs Y. O'Neill: You said in the beginning -- I had trouble catching on. Is it 2 or 3 that talks more about the Ontario economy having developed somewhat parallel? Was it Courchene or Usher who got on to that topic?

Ms Drummond: It was Courchene. What he was arguing was that the economic policy that has been pursued by the province over the last several years has been diverging from the economic and monetary policies pursued by the federal government.

Mr Bisson: I would like you to go back to points 9 and 13 very quickly, please, and give a little recap.

Ms Drummond: Paper 9: At present, jurisdiction over the environment is divided between federal and provincial governments, and it was looking at how that responsibility might be divided. It was a case study using an economic approach. Using an economic approach, he would argue that responsibility for the environment should be decentralized to the provinces, but at the same time there are political reasons why people would prefer to see it centralized. It did not make any recommendations particularly.

Mr Bisson: Can you expand a little on Constitutional Reform and the Bank of Canada?

Ms Drummond: What this author argued was that the Bank of Canada has been quite successful in reaching its goal, if its goal is defined as limiting inflation, but at the same time there is public perception that the bank needs regional representation, so he was exploring some ways that might be done.

Ms Harrington: I do not know where to start. I do not know how you can try to get two or three days into 10 minutes. Impossible.

Ms Drummond: I hope I have.

Ms Harrington: You were mentioning just now regional representation on the Bank of Canada. Are you implying in any way that the policy should be different in different regions to aid their economic situations?


Ms Drummond: The paper does not particularly address that. In the discussions around that issue, there was quite a consensus that is not really possible in an economy like Canada's.

Ms Harrington: The policy, whatever it is, has to be totally national in scope.

Ms Drummond: Yes.

Ms Harrington: So when you say regional representation, you just mean people from various parts of the country on the Bank of Canada.

Ms Drummond: Yes. He actually used the examples of Germany and Switzerland. The regional level of government has made appointments to the board of governors of the central banks in those two countries, so he explored how that works. Essentially, it is more a means of information, informing the bank and the bank informing the regions of reasons for the monetary policy pursued rather than very substantial policy input.

Ms Harrington: I just have a few other quick questions, then I hope to read over what you have given us to fly to get more out of it.

You were talking about the relationship of Ontario's economy to the national economy. How far back does it apply, that Ontario influences the national economy?

Ms Drummond: This is Courchene's paper you are addressing?

Ms Harrington: Yes.

Ms Drummond: I would prefer to give you the paper. I am not entirely clear on the argument.

Ms Harrington: That, of course, now is very topical, about the different directions. I was just wondering how far back that went and how in the past the different economic policies may have played against each other or towards each other.

You mentioned labour mobility. Could you clarify what that means?

Ms Drummond: Being able to move from province to province for work without restrictions.

Ms Harrington: With qualifications, say, with regard to nursing or teaching or various things like that?

Ms Drummond: It was less that, as of course there is not complete labour mobility in those terms, than the existing labour mobility, that people do not need permission to move from province to province to work.

Ms Harrington: One last question: How many of these papers were given by women?

Ms Drummond: From the first names, it looks to me as if there were none. There were very few women there.

Mrs Y. O'Neill: Regarding the labour mobility, was there discussion at all on that paper about work permits between provinces or regulations regarding those permits?

Ms Drummond: No, not at all.

Mrs Y. O'Neill: So it was strictly an actual physical mobility of transferring centres of industrial development?

Ms Drummond: No, the papers that addressed labour mobility were simply saying it was a good thing rather than talking about the details. What they were talking about was people's ability to move within the federation to look for work, rather than economic development policies.

Mrs Y. O'Neill: So what is it? You say it is an easy thing, but right now it is not an easy thing. Plumbers cannot necessarily transfer their papers and this kind of thing. Did they get that specific?

Ms Drummond: No, they did not get that specific. I think the argument would be that interprovincial barriers to labour mobility are not a desirable thing.

Mr Malkowski: Any discussion on the native control of the economics of government?

Ms Drummond: None at all.

Mr Bisson: You say you have all the papers. I would like to get number 2 with regard to the east-west ties. I take it what he was arguing is that the ties are becoming more on social issues than economic.

Ms Drummond: Yes, the metaphor he used was the railway, that the east-west rail line is of social policy and shared values.

Mr Bisson: And basically arguing that the trade is north-south rather than being east-west as it was designed.

Ms Drummond: Yes.

Ms Gigantes: Am I correct in assuming that we will get a set of the papers?

Ms Drummond: We were discussing that, and the clerk will be distributing them.

Ms Gigantes: That is fine. While I am at it, is it possible for us to get quickly a copy of the report given by the so-called group of 22 to the Premier yesterday?

Mr Bisson: It was reported this morning in the Star. Basically, it was a group of 22 people who put forward some propositions in regard to where we are going.

The Chair: We can take a look at that. Obviously, unless it is a private document, we should be able to get that.

Thank you, Ms Drummond, for that overview. In addition to distributing the papers, we will also look at the usefulness of having some of the people who presented here come and talk to the committee, and we will be discussing that, both within the committee and the subcommittee.

Unless there are other items that members of the committee wish to raise in public, that probably concludes the public session for us this morning. My suggestion would be for us to go off the record and continue the discussion of the planning of the next session. There are a number of other points, technical things we need to work out. As people know, we will be receiving this afternoon a briefing, which will be in public, from the Ministry of Intergovernmental Affairs, bringing us up to date as to where things are across the country and giving us that kind of overview.

Unless there are any other things people want to raise, we will need a motion to go into closed session.

Mr Bisson: I so move.

Motion agreed to.

The committee continued in camera at 1047.


The committee resumed at 1553 in room 151.

The Chair: I call the meeting to order. For the people who might be watching us at some point this week over the parliamentary network, I welcome them to this meeting of the select committee on Ontario in Confederation.

As members of the committee know, we have as the main item of business this afternoon a briefing from the Ministry of Intergovernmental Affairs. Before we begin with that and before I turn over to our guests, there are just a couple of very quick items of business we need to do.

The first two things deal with conferences. Last week or the week before, we were given a notice of a conference happening at Osgoode Hall Law School from 23 to 25 June. I think today members were given a notice of a meeting that has been organized by the Canadian Bar Association -- Ontario for Tuesday 18 June. I just want to remind members of the committee, if they are interested in attending either or both of those, to let the clerk know and he will make the appropriate registration.

The other thing is that you should have received a draft of a summary regarding the conference, which we can hopefully have a look at before our meeting ends today. It is a draft that the clerk prepared in response to requests earlier today.

Last, because of the ever-changing nature of the membership of this committee, we need to have a motion formally changing the makeup of the subcommittee. Mr Beer, of course, is no longer a member of the committee. I think what would be in order would be a motion replacing Mrs O'Neill for Mr Beer on the subcommittee.

Mr Offer: I will move it.

Motion agreed to.


The Chair: We turn now to the briefing. We are happy to have a number of people with us today, but I think what I will do is turn to Chris Bredt from the Ministry of Intergovernmental Affairs and ask him to introduce the folks who are with him.

Mr Bredt: My name is Chris Bredt. I am the assistant deputy minister of constitutional affairs and federal-provincial relations with the Ministry of intergovernmental Affairs. On my right is Debbie Gillis, who is an officer with the intergovernmental affairs department, and on my immediate left is David Cameron, who is a former Deputy Minister of Intergovernmental Affairs and is currently a professor of political science at the University of Toronto. To my far left is Tone Careless, who is the acting director of constitutional policy with the Ministry of the Attorney General.

I thought I would just give you a quick idea as to what we propose to do here for you today. I will be giving you an update on what has been happening across the country and at the national level with the various different processes. There are a large number of those ongoing. I will just try to give you a quick feel for who they are, what they are doing, what they have done and when they propose to do it. Tone Careless will then give a general review of where we have come from in terms of amending the Constitution, the hits and the misses. Finally, David Cameron will talk about what is at stake in this round of constitutional negotiations.

Let me begin with a bit of an overview as to the processes that are ongoing in the various provinces and with the federal government. There are now committees or commissions in almost all 13 jurisdictions, including the territories. There are none yet in Saskatchewan or Newfoundland, but both of these provinces have announced that they will be creating some sort of process. There is a federal commission and a parliamentary committee now operating and there will be an additional one commencing this September. There is one Quebec committee and one commission which have completed their work and two new legislative committees that are likely to be created in the near future.

The trend is towards legislative committees. There have been some exceptions to that. For example, the Spicer commission was appointed members, and in Quebec both of those processes had a mix of legislators and other individuals.

In terms of what is happening at the federal level, most of you will be familiar with the Citizens' Forum on Canada's Future, better known as the Spicer commission, it started its work last November and it had a broad mandate to solicit public views and to attempt to develop some sort of consensus. There were 12 members appointed from the general public to represent different regions and interests. There was an initial session of briefings by experts. Since that time there has been a mixture of large and small public meetings, televised meetings, school meetings, 1-800 telephone lines, information kits, small group sessions -- a wide range of activities designed to involve the people of Canada. An interim report was delivered in March of this year and the final report is expected at the end of this month.

The second process that the federal government has ongoing is the Beaudoin-Edwards committee. It was also established in December of last year. It was composed of five senators and 12 members of Parliament from all parties, and its mandate was to look at the amending process only. The committee started with a discussion paper that focused in particular on things like constituent assemblies and referenda. There were two weeks of expert witnesses in February. There were public hearings in March and April, and a final round of hearings from experts in early May. The report is expected to come out by the end of the month as well.

Issues that were raised by the witnesses included such things as process issues like changes to the amending formula, legislative requirements either federally or provincially, and referenda. Constituent assemblies were very much discussed and initially there was even some talk of extra-constitutional types of approaches.


Witness included some governments; for example, the Northwest Territories, the Yukon, British Columbia and Newfoundland made presentations to the committee. A large number of academics and a wide range of interest groups including charter groups, francophones, the multicultural community, women and aboriginal people appeared in front of them, and some private citizens as well.

The new process that has been announced by the federal government involves another parliamentary committee. The full details have not yet been provided but it is clear that the members will include both senators and members of Parliament. There is also the notion that there are going to be some panels, in particular an aboriginal panel that will act as a consulting body to this group. Again the details are somewhat sketchy because the election for the Assembly of First Nations leadership has been ongoing and there has been some difficulty in terms of sorting out exactly how that should be structured.

The mandate, which was clearly described in the throne speech, was to hear the views of men and women across Canada and for each jurisdiction to hold public sessions with a counterpart legislative committee, or with legislators if no committee had been struck. It will also be meeting with aboriginal groups. The discussions will be based upon a new federal proposal. The indications are that this proposal will be tabled early in September and will be distributed quite broadly across the country. The purpose of this federal proposal will be to start discussions across the country.

In Quebec there were two processes that are now completed, both of which I am sure you are familiar with. The first was the Allaire committee established in the summer of 1990 by the Liberal Party of Quebec immediately after the failure of the Meech Lake accord. It held hearings across the province primarily involving members of the Liberal Party, and reported in February. The report dealt primarily with a substantive approach that the Liberal Party should adopt. It was nominally federalist but recommended some very major changes to the federal institutions and powers: 22 powers were listed that ought to be transferred to Quebec's exclusive jurisdiction. Also, quite significant recommendations with respect to restructuring federal institutions such as the Supreme Court and the Canadian economic union and process types of issues essentially suggested that Quebec should receive offers from the rest of the country. If the offers were not adequate, a referendum on sovereignty should be held by late 1992. It was approved by a large majority at the Liberal convention in March of 1991.

The second process was the Bélanger-Campeau commission, which was also established in the summer of 1990 after the failure of Meech Lake accord. It was a mixed commission involving both legislators and appointees that held very extensive hearings throughout Quebec during the fall of 1990 and delivered its report this March.

Five important themes emerged from the Bélanger-Campeau report: first, that the status quo was not acceptable; second, that Quebec would be deciding its own future; third, that they saw some difficulties in reconciling Quebec's distinct identity and vision within Confederation; fourth, that there had to be a reduction of overlap between provincial and federal jurisdiction; and fifth, that lasting solutions had to be found quickly. This debate had gone on for too long.

Two options were offered. One was a renewed federalism and the second was sovereignty. The recommendation was that two legislative committees should be established; one to study sovereignty and the other to examine or review offers of renewed federalism. A sovereignty referendum was recommended by October 1992.

There were a number of addenda to the report that took the form of comments by a number of the signatories. Perhaps the most important of these were the comments by Premier Bourassa, Gil Rémillard, who is the Minister of Justice and Intergovernmental Affairs in Quebec, and Claude Ryan, who is now the Minister of Public Security, I guess, but who as you know was formerly the leader of the party and quite a significant influence. They made it quite clear it was their view that the elected government retain the right to determine the process, notwithstanding the recommendation of the report.

There were also comments by federalists who complained that the assessment of Canada, past and future, was not in accordance with their view as to how the federation had run and from sovereignists who felt that, in view of the witnesses they had heard, the report really should have endorsed sovereignty.

What is happening in Quebec now? A bill was introduced in May that essentially followed the recommendations of the Bélanger-Campeau report, that is, that two committees would be formed. One was a committee to examine matters relating to Quebec becoming sovereign and to study all aspects, economic, legal and international and also to consider offers of economic partnership with Canada. The second committee was to examine any offer of a new constitutional partnership -- in other words, offers coming from the balance of the country.

The bill was withdrawn temporarily. it is unclear whether it is going to be reintroduced. The bill also set two days for a possible referendum, one in July and the other in October. Currently, I guess there are discussions going on in the Quebec Legislature as to what will happen with respect to the bill.

Turning to the balance of the country, then, I will just proceed from east to west. In Newfoundland there is no committee or commission currently. In fact, Premier Wells had indicated he was not in favour of having a provincial committee. However, following a recent meeting with Joe Clark, Premier Wells indicated he would be establishing a legislative committee so that he could participate in the federal process. The Premier has made presentations to the Beaudoin-Edwards committee, where he focused on his views with respect to constituent assemblies and referenda and also on changes to the amending process.

In Prince Edward Island there is a standing committee on constitutional reform. In the March throne speech the government promised to establish the committee. There is no public discussion paper. Advertisements have been placed in local newspapers asking interested groups and individuals to appear before the committee. The hearings began in late May and are continuing into June and a report is expected by the end of August.


In Nova Scotia a working committee was announced last week. Members were appointed as representative of Nova Scotia's linguistic, cultural, aboriginal, business and academic communities. The chair is Eric Kierans, the former federal cabinet minister. The government will be providing a discussion paper to the committee. The committee's process is to include receiving written submissions, toll-free telephone lines and public hearings that will start in September. The committee is to report in November.

In New Brunswick, a commission on Canadian federalism was established in September of last year. It is a mixed commission of nine legislators and a number of appointees. Its mandate, first, is to recommend how the federation may be strengthened to serve Canadians living in New Brunswick; and second, to examine the state of the federation and recommend means through which the federation can be renewed.

A discussion paper was released in February 1991. There had been interviews with selected groups and citizens carrying on into June. There is the possibility of an interim report in August or September of this year. Public hearings have been scheduled for the fall, with a final report expected late this year or early in 1992. New Brunswick intends to request that both the legislators and the appointees on the committee meet with the federal parliamentary committee. In terms of other activities in New Brunswick, the Minister of Intergovernmental Affairs made a presentation to the Beaudoin-Edwards committee with respect to the amending formula.

I dealt with Quebec, and we all know what we are doing here in Ontario, so I will skip over to Manitoba.

In Manitoba, a task force on the Constitution was established in the late fall of 1990. It is an all-party task force that includes the Minister of Justice and is chaired by Professor Fox-Decent, who is a professor of political science at the University of Manitoba. Its mandate is to study Senate reform, especially the triple E Senate; charter, aboriginal, gender and multicultural rights; the amending formula and process; division of federal and provincial powers; overall constitutional priorities; and proposals from other jurisdictions. A number of public hearings were held during the winter. An interim report was prepared by the chair in March 1991. Its final report is expected this summer.

In Saskatchewan, plans for a constitutional committee or commission have been announced, but there has been no further activity to date. In terms of other factors, Saskatchewan recently introduced a law to allow, but not to require, referenda on constitutional amendments.

In Alberta there is a select special committee on constitutional reform. It began following the failure of Meech in the summer of 1990 as a task force of seven government members of the Legislative Assembly. It is chaired by the Minister of Federal and Intergovernmental Affairs. There were four sessions held with experts during the fall of 1990. A public discussion paper was released in February of this year. It has now been formally expanded to become an all-party committee. Public hearings began in late May. A report, although originally due for 1 July, is now scheduled for later in the fall.

In British Columbia there is a cabinet committee on the renewal of federation. It was established in December 1990. A discussion paper was released in March 1991. The committee is chaired by the Premier. Its mandate is to put forward proposals that will ensure an equitable and rational federalism that is fair to all regions, but with a particular focus on the practical realities of governing a regionally diverse federation; federal restructuring to lessen the dominance of central Canada and reduce federal-provincial waste and duplication; and more effective and appropriate ways for citizens of the province to have their views and values reflected in the Constitution.

The 7 May throne speech announced the creation of a select committee of the Legislature. In addition to that, there has also been a referendum law passed in British Columbia that permits referenda to be held on major issues, including formal constitutional amendments.

Turning to the territories, each one has a process under way. In the Northwest Territories it is a select committee on Constitutional reform. It was created in March 1990 during the Meech process and is chaired by the Minister of Justice. The members are the Minister of Aboriginal and Constitutional Affairs and three members of the Legislative Assembly. It has prepared and delivered submissions to both the Charest committee, which had cross-country hearings prior to the first ministers conference in June, and to Beaudoin-Edwards.

In the Yukon there is a select committee on Constitutional development, again created in May of 1990. There is one member each from the government and the opposition. A public discussion paper was released in May of last year and public hearings took place in March of 1991. A report was issued in late April of this year which contained a summary of the public views heard but did not contain any recommendations. Premier Penikett has made representations to the Beaudoin-Edwards committee, focusing on northern and aboriginal participation in the amending formula as well as a number of other topics.

I think that is a quick rundown on what has been happening with your counterparts across the country. I think, as you can see, that most committees are in the process of carrying on and looking at the types of issues you are looking at. I will end the presentation there and ask Tone to speak. I think the thought was that we would take questions after we had completed all of the presentations, if that is --

The Chair: If that is acceptable to people; I did see a few hands go up. Are people okay with waiting until the presentation is over? Mrs O'Neill, you would rather have some questions now?

Mrs Y. O'Neill: That is pretty heavy stuff. I think it would be nice to be able to ask after each presenter.

The Chair: All right. Is that okay if we do it that way?

Mr Bredt: Sure.

The Chair: Okay, then. Mrs O'Neill, go ahead.

Mrs Y. O'Neill: I just have a couple more, to go back to Bélanger-Campeau because you really did condense that quite tightly and I am happy about that. The third point you mentioned was the difficulty in reconciliation. Could you expand a bit on that point?

Mr Bredt: The view of the Bélanger-Campeau commission, in terms of reconciling the distinctiveness, was some skepticism, given that the "distinct society" clause in Meech had been one of the major elements in the failure of Meech, whether in a future round that distinctiveness could be achieved. I think that was the thrust of the concern. They felt this was essential to Quebec as part of an overall constitutional package, some skepticism as to whether it could be achieved in view of what happened in the Meech process.

Mrs Y. O'Neill: Okay, my second and final question at this moment -- you said the bill has been withdrawn. I did not realize that. This is not the bill that has anything to do with the two committees; it is the bill that has to do with the referendum, is it?

Mr Bredt: It is the same bill that deals with the referendum and with the committees and was being debated in the Legislature. I am not 100% clear on exactly what took place, but my sense of it was that there had been some thought that there would be all-party agreement on this bill. It became quite clear that the opposition was going to oppose the bill because it thought it did not fairly represent the recommendations of the Bélanger-Campeau report. It is unclear now whether the government intends to proceed with the bill. I guess that was my comment. It is unclear to me where they propose to go. Do you have anything to add to that, David?


Mrs Y. O'Neill: At this second it is kind of in second reading.

Mr Bredt: I am sorry, I do not know. My sense of it was that the government had decided to withdraw the bill. Whether they are going to chose to reintroduce it or not --

Mrs Y. O'Neill: It would be really helpful if we could keep that up to date.

Mr Bredt: Why do we not deal with that as follows: I can find out exactly what the situation is and convey that to the Chair of the committee.

Ms Gigantes: I thought the bill had been withdrawn and there was not a decision yet about what to do about it.

The Chair: We will get the latest word on that and we will pass it on to members of the committee.

Ms Harrington: My question was exactly that: Please clarify the bill. Further to that, the two committees that came out of that, they are not directly related to the bill itself in any way, are they?

Mr Bredt: Yes, very much so. What the bill does is establish the two committees and also establish a process for the referendum either in July or October. So it is all part of the same bill.

Ms Harrington: So, in effect, the establishment of those committees is now up in the air.

Mr Bredt: Yes.

Ms Harrington: It is not final. Thank you.

Mr Offer: One short question dealing with all of the processes that are fluttering around the country: Is it your impression that Quebec will not partake in any type of discussion but will rather await offers on whatever the result of these committees is, whether they be through the committee or through premiers' meetings, but it will just wait to receive as opposed to take part in the formulation of offers?

Mr Bredt: My sense of it is that there are very much mixed signals that are coming from Quebec. There have been indications the committee may well meet with the federal committee when it does its tour across the country this fall. That has certainly not been stated clearly by either the Premier or by Mr Rémillard. In terms of whether that committee would meet with other committees such as yourselves, again, that is unclear.

Mr Bourassa certainly is prepared to meet bilaterally with his counterparts and, as you are all aware, he met with the Premier last week. The best I can say is that it is still unclear as to whether or not and to what extent the Quebec committees will be meeting with other committees or would be participating in these types of processes.

Mr Offer: Just a very short supplementary on that line of questioning: It seems there are emerging two tracks of discussion, the first being in general the creation of the committees across this province, but, of a fairly recent nature, the premiers also meeting. I am wondering if you might share with us your thought as to whether those two tracks, if you see them as that, will ever merge or whether they are going to be kept separate and if that might result in some problem as to criticism of the process down the line.

Mr Bredt: In terms of what the federal government has announced, the process will be its parliamentary committee meeting bilaterally across the country with the various different committees. Mr Clark has also indicated he has had a round of meetings with the premiers across the country. There has been some indication that before the federal proposal is actually tabled publicly there may be another round of such meetings, but again, there have been no clear announcements about that from the federal government.

Mr Winninger: My question is complementary to Steve's and you may have partially answered it. I was struck, when I read the Bélanger-Campeau report, by the fact that after all these research papers submitted and all this heated discussion they obviously had, there were no options laid out for federal renewal and that the onus seemed to be shifted to all of the other provinces and the federal government to come forward with offers. I wonder whether that was a political position or whether it just was not within their mandate.

Mr Bredt: I think that when you look at the two Quebec reports the Allaire report was primarily substance with very little on the process, whereas Bélanger-Campeau was primarily process but very little on the substance. Certainly it has been suggested that given the political differences between the people on the Bélanger-Campeau committee it was difficult to reach consensus on substantive issues, so they focused on the process issues which were more susceptible to agreement, whereas in the Allaire report, it being a report of one political party, it was easier to reach more substantive proposals.

Mr Winninger: I have one supplementary. Given that there seems to be some resistance on behalf of the Bélanger-Campeau committee to meet with our own committee, I am just wondering what the accepted avenue for making these offers of renewed federalism might be.

Mr Bredt: First of all, I would say that the Bélanger-Campeau committee is now defunct so that it is no longer around to meet with anybody, not just the Ontario select committee. I think the real question will be the willingness of the committee that may be established to look at options for a federal Canada to meet with other committees.

In response to the second part of your question, which is, how does the process move forward if Quebec is not prepared to meet with committees such as yours, my sense of it, from Quebec's perspective, is that it will wait to receive offers.

Ms Gigantes: Send them an offer.

The Chair: Are there any other questions? I think we can proceed then with the presentation.

Dr Careless: My purpose in my remarks is to give you a brief box score of the history of constitutional reform. As Chris has pointed out, there are hits and misses in this exercise, which has preoccupied recent Canadian history from about 1962 on. I think it would be more helpful, rather than giving you a straight chronology, to perhaps ask how governments in Canada have addressed four basic and enduring themes in Confederation, because it would strike me that these are likely to be the ones that will remain with us as we move towards the next set of negotiations.

These themes I want to look at are, first, how do you express the common values that are held by the majority of Canadians as an effort to built nationhood? Second, how do you provide a formal balance between national and regional communities? Third, how do you preserve and promote our Confederation commitment to language integrity -- between English and French -- in the presence of an increasingly plural society in which other identities are equally important if not more important? Fourth, how do you improve the relationship between citizens and government? How do you progressively make this a more democratic form of government in Canada?

As I have made these four observations, what is immediately apparent is that there is no mention whatsoever of the aboriginal agenda. If I might suggest, this might be a self-contained item that should be looked at by someone who is specializing in that area. So I will leave that out of my remarks.


The approach I want to use to address these four themes is really to summarize the extent of intergovernmental discussions and achievements by looking into four topic areas. One is the amending process, the second is the division of powers, the third is the issue of rights and the fourth is the issue of institutions. I am going to confine my examination, and I am sure my expertise, if there is any, to really looking at government initiatives. I am not going to comment on the interesting suggestions that have come from, say, the Task Force on Canadian Unity -- the Pépin-Robarts task force -- from the Macdonald commission on Canadian economic union, or from Bill C-60, which was a federal proposal in 1978. A number of these proposals did not formally enter the process of negotiation and I am setting them to one side in my remarks.

Also, I am not covering the more prominent history of success in Canada on these four themes, which is the non-constitutional resolution of these four questions that I have posed. One could talk at great length about the success of shared-cost programs, of reciprocal agreements on language, which may have achieved many of these objectives without having to turn at all to constitutional success or failure.

Finally, I should say I am going to try to keep my editorial comments to a minimum and leave any reflections on the merits or success or failure to people who have academic qualifications in this area.

First of all, I would like to look at the amending process. In each case I would like to talk about what I think the issue is and then how we have approached this intergovernmentally in the constitutional forum.

On the amending formula, I am sure you are aware that Canada did not give itself, or ask from Britain when it left the British empire, its own unique amending formula. It is one of the unique dominions that, when it left in 1932, asked Great Britain if it would retain the amending process until we had struck one we could all agree to. As you know, we did not achieve that until 1982.

The questions on the amending process -- I think there are three -- are, first, how do you strike a procedure for identifying, negotiating, entrenching and changing the values that we hold in common and those that we hold in difference; second, how do you settle on a formula that is a blend of, on the one hand, flexibility -- that is, we want to be able to keep the Constitution modern -- and on the other hand, rigidity -- that is, we want to protect vulnerable minorities from whimsical changes of majorities from time to time; and the third question is, how do you make all of this understandable and accessible to Canadians?

In terms of my four themes, it seems to me that if we get the amending process right, we are going to make a major contribution to this first theme. A good amending process and formula should be a major contribution to nation-building.

In the approach tried by governments from the period of 1962 to 1990, the first priority was, of course, getting a formula. It was part of Mr Trudeau's package, and even earlier than that, that if we could get an amending formula we could then patriate the Constitution and become fully and entirely a free-standing dominion within the British Commonwealth. The issue of whether this formula could then be exercised through a clear and democratic legislative process did not arise until after 1982.

When you are trying to strike a good formula, you are really asking yourself three questions: what items should be subject to unilateral action by either the federal government or the provincial government; what actions could be agreed to, based simply on a majority of some size among governments; and what topics have to be changed only when you have unanimity among governments?

The first and unsuccessful attempt in recent years on an amending formula was what is known as the Fulton-Favreau formula, named after two ministers of justice in the Liberal and Tory governments in the early 1960s. It is an interesting formula in that it is a complete reverse of the one we have today. Whereas today we protect our national institutions behind unanimity and we allow our division of powers to be changed based on 7 and 50, Fulton-Favreau would have allowed division of powers to be changed only if we could unanimously agree to that change but would have allowed national institutions to be changed based on 7 and 50.

As it turned out, the Fulton-Favreau formula did not succeed. It was reported by the commentators at the time that Quebec perhaps realized that it would have liked quite a bit more flexibility on changing the division of powers, because that was the agenda it had for the 1960s, and unanimity seemed to be quite a difficult obstacle for any change. Therefore, Quebec, if I have understood history correctly, was the party that said in retrospect that it did not think it could go along with the formula. We did not succeed then, in 1964, with our first attempt at an amending formula.

The second attempt was the Victoria formula. It was related to what we call the Victoria charter, which was an intergovernmental agreement on a range of constitutional reforms in 1971. It was a flip on the Fulton-Favreau formula. The importance of unanimity was reduced dramatically, in fact almost eliminated. Their approach was that they did not want to use 7 and 50. What they wanted to use was a formula in which the federal government, any province with 25% of the population, which would have been Ontario and Quebec at that time, any two of the Atlantic provinces and any two of the Western provinces having 50% of western population would have to agree. Here was a threshold that set up the idea, as was later complained about in the west, of second-class provinces. It looked as if Ontario and Quebec would always have a veto and that you would have to get some combination of provinces in the west or in the east to exercise a western or eastern veto.

But what was interesting here was that there was at least a notion of region, there was a notion of flexibility. It was a more flexible formula than Fulton-Favreau. They did add the concept, which now appears in our current Constitution, of bilateral amendments, the idea that maybe a province together with the federal government could amend something that did not apply to the rest of Canada. As with so many of these earlier stages of failed attempts, we find some of the seeds of ideas that then reappear in the final version in 1982.

The formula that we have in 1982, which is the law of the land, is often called the Vancouver formula. I have heard it called the Edmonton formula. It depends on where you thought it was conceived, I suppose. This is a return to this idea of a two-tier formula -- unanimity for some things and a modest threshold, a majority threshold, for others. But as I said to you a moment ago, it is an inversion of Fulton-Favreau. Now the national institutions will be hidden behind or embedded in the unanimity provision and the division of powers in the charter is covered by a 7 and 50 threshold.

The aspect of the formula that is appealing to the west, of course, is that no one province has a better chance at a veto than others. There is not the sense of a second-class status for some province that must join with another in order to have an impact. So the idea that the veto was no longer part of the vocabulary was attractive.

It was also important that equality of provinces was emphasized in this new formula. The formula also includes a provision for opting out of an amendment that may otherwise carry in Canada. If it derogates from your provincial powers and you choose not to have that occur you can, in certain circumstances, opt out. In some circumstances, we also see financial compensation if the effect of the new federal acquisition of the power would mean that it would be spending in that area where provinces once spent. In the areas of education and culture, you could receive compensation if you chose not to assent to an amendment that would otherwise be carrying in the rest of Canada.

This formula retains the provisions for bilateral change to our Constitution. You will have heard a number of your witnesses talking about the prospect of being able to use this perhaps as a way of fine-tuning or changing the Constitution, whether or not the rest of or a great number of the provinces might be able to go along. It also introduced the idea of a time limit, the matter that posed difficulty for the Meech Lake accord, that on certain kinds of amendments you require no more than three years to reach an agreement for them to carry.


In the 1987 Meech Lake accord we would have made one final change to the amending process. We would have shifted more items into the unanimity category. The Supreme Court of Canada, the provision for new provinces and changes to the Senate and the House of Commons would have been clearly and solidly located behind a unanimity provision. We would also have broadened the categories in which we would have given financial compensation to provinces which chose not to be part of an amendment that, if carried in Canada and when carried in Canada, would have derogated from their powers.

I said that was the first half of the amending formula conundrum: How do you actually get yourself a formula that is both flexible and rigid? The second portion is, how do you get the public to participate in this exercise and also to understand it?

What is interesting is that up until 1982 any amendment, including the constitutional change of 1982, had simply to be agreed to by the Governor General in Council and by the Lieutenant Governor. Therefore, the assent and the instruction could largely come from the executive level of government. In 1982, however, the process for amending the Constitution became entirely legislative, so there is no reference to executive federalism and there is no formal role for the executive to play in the process of amending the Constitution. The resolution has to be submitted to the Legislature in question and has to be approved by a majority of the members in that Legislature. On the basis of that, the Governor General is informed of the action of a provincial Legislature and he waits for the action also to be concluded at the federal level.

In 1990, had the Meech Lake accord passed, we were prepared to put the idea of drafting a Canada clause to our Constitution to an all-party House of Commons committee following the passage of the Meech Lake accord. That was as a result of the 1990 accord that was agreed to among first ministers about this time last year in Ottawa. We would have introduced another approach to adding other clauses to our Constitution.

There was also mentioned in that accord the adding of the idea that there be mandatory public hearings at any time there was a constitutional amendment going through a provincial Legislature. As Chris has mentioned also, we have another wrinkle, another addition to the amending process now with the British Columbia provision that a referendum would need to be held at the time that there was a constitutional amendment.

What we have done, therefore, in summary of this exercise of amending the Constitution, is we have moved from a concept of changing the ground rules of our Constitution, which were very strongly executive-dominated, very much a feature of the traditional concept of responsible government where we gave a lot of power to the cabinet and then held it responsible for that, to a form of representative amending formula in which we are now formally incorporating the Legislatures by law. The representatives, not simply the executives, are responsible for this function and, as you can see, mention of a referendum or mention of, say, a constituent assembly is moving this even further beyond the tradition in Parliament, from responsible to representative and now perhaps to a popular or populist form of direct democracy.

The second area I said I would look at as a topic, addressing the theme of how do we provide for a Confederation balance, is the question of division of powers. Here, I think there are two questions that historically we have looked at. First, should the common responsibilities that governments in Canada have, federal or provincial and municipal, be divided or shared or asymmetrical? Second, should the federal government continue to retain the provisions of 1867 that allow it to override provincial laws and policies, notwithstanding the division of powers? These are sometimes called override powers or exceptional emergency powers, and there is a range of them, from peace, order and good government to declaratory power -- lots of technical terms -- and spending power.

I think the division-of-powers exercise in both of these categories was trying to address this theme I mentioned at the beginning of how do you get the balance right between a national commitment in this society, a commitment to strong regions and a commitment to our linguistic founding communities?

With regard to the approach that we took, first, on the redistribution of powers, on the whole I think one should say that there has been almost no significant constitutional reform. Much of the change to the roles of federal and provincial governments have occurred outside the Constitution, in a de facto and an administrative sense. What formal redistribution there has been has largely been tilted towards greater provincial involvement in either what once was exclusive federal responsibility or in areas that were not even foreseen in 1867 in the Constitution, matters such as the environment and communications.

I would balance that by saying there are other moves that are not directly related to the division of powers which do, I think, counterbalance the idea that the provinces were getting a significant increase in influence through a division-of-powers reform.

Let me give you some examples of what I think explains this provincial tilt. First of all, a couple of misses, if we are talking about hits and misses: In the Victoria exercise, between 1969 and 1971, the federal government's activity in family allowances, manpower, guaranteed income, old age security and youth allowances, which it had been in over the preceding 10 years, would have been confirmed as concurrent, but there was a real struggle as to whether the provinces would reassert their paramountcy in this area. So there was quite a tension between which order of government should be paramount in these new social service areas.

The tension was made a little more clear in 1974 when there was a series of letters between Prime Minister Trudeau and individual premiers, although they never got together in a negotiating context we are more familiar with, say, in 1981. Here, the provinces were clearly out to enlarge their powers. Unambiguously, they wanted to move into communications, particularly cable, they wanted to have the same rights over offshore natural resources as they enjoyed on land, they wanted control over fisheries, control over or greater access to the taxation of natural resources and an extended role in culture, particularly broadcasting.

The real achievement, because these were only negotiating positions, came for the provinces in 1982, when there was an addition to our 1967 Constitution -- we call it section 92A -- which confirmed the provincial control over the extraction and exploration of natural resources, enlarged their right of direct taxation over non-renewable natural resources and energy and relaxed the constraints that had to that date been on provinces on the interprovincial trade in energy and non-renewable natural resources. For most observers then, this was, in the division-of-powers exercise, a clear tilt of the Constitution towards the provinces. Had the Meech Lake accord passed in 1990, many observers felt that the immigration agreement that was provided for there might also have been a further tilt towards provincial autonomy or pre-eminence.

When you ask what in the division-of-powers exercise over the last 25 years has been in the federal government's favour, again, there are a number of misses before we talk about hits. I suppose one might say the bad news was that in the Victoria process, because it failed, the federal government did not have affirmed its concurrent rights in these social policy areas that I have named.

In 1982, Mr Trudeau suggested that, for all the focus on powers that the provinces wanted to improve, he wanted to address the economic union and was particularly arguing for an enhanced federal power to police an economic union. But again, there was no success on that one, and it did not form part of the agreement in the eventual constitutional amendment.


So when you ask yourself where there have been federal successes, I think one does look to division-of-powers exercises that are not yet entrenched in the Constitution. The federal government has, through its use of the spending power, brought national standards into the provision of health care. The federal government has intervened increasingly into regional equalization and, with section 36 of our Constitution, may now have achieved an enhanced responsibility in that area. Also, as most observers note, the charter was certainly the most unifying feature of Canada that came out of the 1982 Constitution, although I am not certain many observers would agree that the charter has much impact on the division of powers per se.

I said there was another dimension to the division of powers that had to he resolved. It is not strictly the matter of who has section 91 powers and section 92 powers, but what we should do about those early provisions in our Confederation that allowed the federal government to intrude on the provincial government responsibilities, which was probably consistent with the conception of Confederation; that is, that these provincial governments were merely municipal governments and some were quite immature and some not even formed yet at the time of Confederation. It was not surprising, I guess, in the idea of putting together a new nation, that the federal government might need some of those additional capacities to move in where provinces could not do the job or might be doing the job in a way that was not responsive to the interests of other provinces or Canada.

There is a mixed story on the capacity of the federal government to take over and to interfere in the provincial area. The courts have managed to keep alive all of these provisions, whether they be spending power, declaratory power, reservation and disallowance, or peace, order and good government. These powers have not at any point been defined by the court as dead or of no continuing value.

The federal government has also actively used the spending power, the capacity to make grants in any jurisdiction on any head -- which is the privilege of the monarch to give gifts to her subjects, I suppose -- quite extensively. For many provinces, led by Quebec and other provinces like Saskatchewan in the past, this has proved to be a continuing source of intervention, of duplication and of a collapsing of the notion that there should be two separate heads of responsibility, one federal and one provincial.

But here the federal government too has provided, I think, an interesting legacy on how the spending power might be handled. In 1969 -- this is a miss, admittedly, on constitutional reform -- the federal government promised it would in future subject its use of the spending power to approval of the provinces, not much different from 7 and 50. In other words, they said they would use the spending power in a provincial jurisdiction provided that seven provinces representing 50% of Canada's population would agree.

In the Victoria exercise in 1971, the federal government agreed to eliminate or proposed that it would eliminate the reservation and disallowance power, that provision in which it can, through the Governor General, reach into the provincial Legislature and hoist a piece of legislation out of that Legislature for the review of the Governor General, and if necessary the Governor General could disallow it.

In 1979 the federal government again offered to make the spending power subject to a provincial consensus, lowering it this time to 6 and 50. And in the Meech Lake accord, as I am sure most of you know, the federal government would have been prepared to provide reasonable compensation to a province that chose not to be in a national shared-cost program in an exclusive provincial area, if the province was prepared to provide a program comparable with these national objectives.

The story, therefore, on the capacity of the federal government to override the provincial governments in their jurisdiction is one that has been subject to a great deal of intergovernmental negotiation and at times self-restraint and at other times perhaps, in the Canada Health Act, a federal insistence that there be national standards. But there has been no formal resolution of this particular aspect of the division of power in the Constitution.

The third area I suggested we might look at is the issue of rights: How have the protection of and the definition of rights contributed to these themes that I mentioned at the beginning of my presentation? When you talk rights, the issue of rights is really a catch-all term. In my mind, it addresses three possible areas. One is the right of the individual or group to be protected from government intervention, another one is the right of depressed regions to be entitled to government equalization, and the third one is what we might call, loosely speaking, the community rights of Quebec to be recognized as a distinct society.

Now again, rights, if we address them in constitutional reform, should address that fundamental theme of Confederation: How do we get the balance between our linguistic commitments of 1867 in synch with our increasing pluralism of the late 20th century, and also how do we address that relationship between the citizen and the government, the enhanced democracy that we wish to see in a modern nation?

On these three, then, the approach: First, on the protection of individual and collective rights, I can only very broadly sketch what has been done over the years. I should mention, of course, that this protection is not a feature of any Constitutional activity alone, that there have been antecedents in provincial human rights codes and in the Diefenbaker charter in which, in a statutory form, we were identifying and protecting these rights. We continue to do that, of course, in our own human rights codes.

But in the Victoria exercise of 1969 to 1971 -- a miss -- none the less, the federal government and the provinces would have agreed to the protection of fundamental freedoms such as the freedom of conscience, opinion, religion and expression. Interestingly, even then they were going to make those freedoms subject to a reasonableness test; that is, that the right would be guaranteed subject only to such reasonable limits that were prescribed by law as can be demonstrably justified in a free and democratic society, a phrase that, as you know, is in section 1 of our current Charter of Rights and Freedoms. They would have defined and protected political rights and they would have reaffirmed the linguistic rights that we have in our original Constitution; that is, the right to speak and to have the legislative proceedings in English and French in almost every Legislature across Canada.

No success from that process. In 1974, Prime Minister Trudeau tried to make an offer to the provinces to patriate the Constitution with a very simple language right guarantee that would apply only at the federal level. The provinces, while not unsympathetic to that, were at this stage saying they wanted no treatment of the Constitution without also putting in the package a redivision of powers.

In 1982, of course, we achieved the full Charter protection not only of some of these rights but even more. Fundamental freedoms -- the ones I mentioned -- are now protected: political freedoms are in, legal freedoms and rights, equality rights, mobility rights, language rights and statements related to the aboriginal people and multiculturalism. The two additional elements in this Constitution are the provision of section 33, where a government, whether it be provincial or federal, can under certain circumstances through the Legislature allow its legislation to stand, even though it violates a provision in the Charter in so far as fundamental, legal or equality rights are violated. But as I am sure you know, section 23 on the language rights cannot be overridden by this provision.


The other provision is the section 1 provision, the reasonableness test, in which it is stated again, as it was in the Victoria process, that a government might be able to restrict these rights, notwithstanding the provision in the constitution, provided that these restrictions were within reasonable limits prescribed by law as demonstrably justified in a free and democratic society.

The 1987 exercise: Had Meech Lake passed, it would have been a confirmation that the multicultural and aboriginal elements of the Charter would not have been affected by the "distinct society" provisions of the Meech Lake accord.

The second of the three rights areas I suggested should be addressed is the regional equalization, the right of a depressed region, a chronically poor region, to be entitled to some form of support on the revenue side of its budget. This actually goes back very far as a tradition in Canada. It goes back into the period of the late 1940s, and was, in a sense, just formally entrenched in the constitution of 1982. In the constitution there is a right, if you could put it that way, that a provincial government should have sufficient revenues, and some of those may therefore have to come through transfer payments from, say, the federal government, so that it can deliver reasonably comparable levels of service at a comparable burden of taxation.

The third area of rights I suggested we might look at in terms of the record is the treatment of distinct society. The question here, as put in the Meech Lake accord, was whether we could identify Quebec as a "distinct society" and recognize its capacity to preserve and promote this distinct identity, while at the same time not diminishing any of the existing powers, rights or privileges of the Parliament, government of Canada, or Legislatures of the provincial House.

This, I suppose, is not so much a right -- because it has often been contested by rights groups as somewhat less important than individual and collective rights -- as what is sometimes called a community interest. It is, as a collective community interest, to be balanced against the individual and the collective rights in the Charter. The issue at stake here, and there are varied opinions as to whether the balance was correct, is whether there should be a balance and whether the balance is right. This is an issue that has been quite an old tradition in Canada, and in no way did it simply appear in the Meech Lake accord.

For example, we have in our constitution the Canada pension plan and Quebec pension plan, which finds a balance between a national and a Quebec-based scheme. There are different family allowance regimes with the federal family allowance cheque in Quebec, or have been in the past. Some provinces have exercised the right to opt out of shared-cost programs. Section 93, the education provision, and section 133, the official language provision, apply differently in provinces, through the Constitution. Senate representation is different through our Constitution, and there is a provision in what we call section 94 for the uniformity of laws, that does not apply equally, even today across Canada, so the concept of there being a slightly different balance between the obligations of the Constitution and the rights of a community interest is fairly well established.

It also appears that the courts have recognized for quite some time that there could be a difference of emphasis between the individual right and the community interest in provinces. Particularly we think of the Chasseur Brown case in Quebec, in which the court affirmed that it could understand the prospect of there being a difference of guarantee. What they were concerned about was that the extent of protection of the French language was out of proportion to the threat or the challenge to that language.

In the "distinct society" debate, then, in 1980, there was a proposal that "distinct society" be put into our preamble. That was not a successful exercise. We did not end up with a significant preamble in our Constitution.

In 1982, it might be argued that section 33 and section 1, which we find in the charter, in some way a reflection of an interest or an understanding of a distinct society.

In 1987, there would have been an explicit preservation and recognition of a distinct society, but again, as I quoted to you from the Meech Lake accord, this would have been a distinct society that, once recognized, could be preserved and promoted only under a number of specific conditions.

In 1990, at this time last year, the first ministers got together to take a final look at the Meech Lake accord. As you may know, they asked a number of distinguished lawyers to give their opinion on whether the "distinct society" clause would have jeopardized provisions that were currently existing under the charter and under the Constitution. If I might read, their opinion was that:

"In our opinion, the Canadian Charter of Rights and Freedoms will be interpreted in a manner consistent with the duality `distinct society' clause of the proposed constitutional amendment, 1987, the Meech Lake accord. But the rights and freedom guaranteed thereunder are not infringed or denied by the application of the clause and continue to be guaranteed, subject only to such reasonable limits prescribed by laws that can be demonstrably justified in a free and democratic society, and the duality `distinct society' clause may be considered, in particular, in the application of Section 1 of the charter."

Finally, I said that the fourth topic area would be the area of institutions and what we have been doing over the years to sustain the institutions and reform them. The issue is, what form of national institutions will assure effective representation of regional and bicultural interests in the making and adjudication of national policy? We can look at Parliament, federalism and the Supreme Court of Canada.

The constitutional record in terms of reform on the matter of parliamentary reform is in fact very short. The issue of Senate reform was not talked about in a formal sense among governments until 1990. It did not enter into any of the constitutional documents we have used on the table between governments. There has been no further discussion about the reform of, say, proportional representation in the House of Commons or any other changes to Parliament, so the record of addressing institution reform is quite limited.

When we look at the second area of national institutions, federalism itself, the record here has been that there has been a provision in the Constitution to hold first ministers' conferences on the aboriginal agenda. There was a proposal in 1987 to also add first ministers' conferences on the economy and on constitutional reform, but there has been no achievement on this in any formal sense in our constitutional documents at present.

Finally, the other national institution would be the Supreme Court of Canada. Have we achieved any goals in that area? The Supreme Court has existed in federal legislation since 1867, but it has not been formally and properly and completely entrenched in our Constitution, and to this day has not been entirely entrenched, according to a number of constitutional scholars. There have been a number of attempts to do this. The latest would have been in the Meech Lake accord. They would have entrenched the Supreme Court, put its change to a question of unanimity, specified its composition and required the provinces to nominate candidates, but that did not come to pass.

I will conclude my remarks at that point. The thrust of what I would say is that on the citizen-government relationship, we have achieved a charter and a limited amount of experience on the legislative role in constitutional change. On the national-regional balance, we have not really, formally in the Constitution explored the issue of asymmetry or the prospect of national standards apart from the federal government. On nation-building, we have not changed the division of powers in that direction, if anything; also we have not changed any institutions to enhance that. On the issue of pluralism, this new element in Canadian federalism, we have some brief mentions of the aboriginal, the multicultural and the equality dimension of our country in the charter.


The Chair: Thank you very much. There are a couple of questions. Mrs O'Neill?

Mrs Y. O'Neill: I wish I had some of your expertise, Dr Careless. It is outstanding how you can bring us through all of that and do not seem to get caught.

I would like to ask two simple questions. They are simple because, as I say, I find it all very complex. You talked about mobility rights one place there. Could you say a little bit more about that?

Dr Careless: There is a section in our 1982 Constitution which allows a citizen to move across the country and to pursue a livelihood in any province and not to be discriminated against on the basis of a residence requirement, but it is limited to that dimension.

Mrs Y. O'Neill: It has nothing to do with licensing or educational qualifications?

Dr Careless: No. My understanding was that the courts have not translated that into an obligation that, you know, a doctor's licence or --

Mrs Y. O'Neill: I am thinking teaching; I am thinking some of the trades.

Dr Careless: Yes, or a real estate licence or a licence to practise law. You might know more of that, Chris.

Mr Bredt: I think the leading cases that have dealt with section 6 of the charter have been cases that have involved the professions. There is a case called Black v. The Law Society of Upper Canada which dealt with an attempt by the Alberta government to keep the Toronto law firm of McCarthy and McCarthy from opening up in Alberta, and that provision of the Law Society of Alberta was ultimately struck down because of that. There was also a case that dealt with doctors moving to practise in British Columbia. They had a system there that essentially made it very difficult for non-British Columbia doctors to get billing numbers to bill their equivalent of the OHIP, and again, that type of provision was struck down.

There has not been a great deal of litigation and certainly no process that would compel the provinces to move together in terms of standard-setting. I think the general principles have been that each province is entitled to set its own standards, and as long as non-residents of the provinces are entitled to take the same exams or meet those standards, those have not been seen as violating section 6, at least in the case law to date.

Mrs Y. O'Neill: My second question has a very personal note for me. I am sure I have some grave misunderstandings, and I am trying to keep abreast of the issue, but the speech from the throne federally talked about what have been considered educational matters and some of these are being interpreted as strictly provincial matters. I wonder if you could comment about that. Is it skills training or is it a desire to be involved in something that to this point has been considered quite provincial?

Dr Careless: The issue of education has not been on the agenda of formal constitutional reform. The activity that has been carried out in terms of the federal and provincial governments working together largely has been through the form of co-operative federalism, the informal administrative agreements, and in that case there has been, from my recollection, a fair degree of success on the skills training side, a fair degree of working together. On the education side I think it is a little more sharply drawn, and the question I think is still open as to what role the federal government will be playing in conjunction with the education ministries in Canada, although of course the federal government has its own programs directed towards various research centres and towards students in particular.

Mrs Y. O'Neill: Would any of you be able to say how that it is sitting in Quebec, this speech from the throne that we are all kind of wondering what it means?

Mr Bredt: You are not the only one who is wondering what it means. I think the reaction in Quebec to the federal government announcement about pursuing initiatives as part of its competitiveness agenda in the education field, to put it mildly, has not been a positive one. They are very concerned about that announcement and where the federal government intends to go. I think that is as much as I can help you on that.

Mrs Y. O'Neill: My final caveat then is, are there any other responses from any other provinces on this issue that you know of?

Mr Bredt: I think there are ongoing discussions among the various governments about the federal government initiative. My sense of it is that there is nothing formal. Certainly there have been statements by not just Quebec; I think there were statements by the governments of British Columbia and Alberta about their concerns as well. In part, some of their concerns reflect the fact that the federal government's announcement was unclear. It was kind of a general indication of interest in the area, but no clear indication as to what that meant in practical terms.

Mrs Y. O'Neill: Thank you for being as helpful as possible.

Mr Offer: Thank you for your presentation. You have given some historical perspective to all of this. I am wondering if I could ask two questions based on what history has taught us and then moving from this day forward. It is on the issue of a constituent assembly, first, and second, whether provinces such as this province and others, keeping in mind the lessons of the past, would be likely to accept a drastic change in the division of powers. I am wondering if I might obtain from you your sense as to that, and on the issue of constituent assembly, with respect to the perspective of Quebec, whether from the lessons of the past it might in any way, shape or form ever entertain the notion of constituent assembly.

Dr Careless: On the constituent assembly one, I am going to confine my response on Quebec strictly to what we know from the past situation. In no way would this be a comment on where the present government is.

Most observers who look at the situation in Quebec note how strongly supportive voters are of the traditional parliamentary process and practice in that province. The government tends to have a very high popularity rating and the role of government and particularly the role of cabinet seem to be fairly well accepted. The kind of debate that may have been entertained here in Ontario, and we find in the media generally, is one that seems to be more common within the English-speaking parts of Canada, in which there is a sense that maybe one can supplement or complement or even replace the role of the executive. I am simply making an observation that most commentators have noted, that the Quebec people seem to be quite a bit more traditional and perhaps more trusting in the role of the cabinet to speak for the government and the people of Quebec.

On the issue of whether provinces would be disposed to drastic change, again, looking back at history, I think there is no question that one would have to say that Quebec has always been the driving force and that from time to time other provinces have been drawn into that vortex and have found it advantageous to have Quebec sustaining the argument repeatedly that social policy and economic policy have to go back to where they were originally designed in 1867. From time to time the government of Alberta and even the government of Saskatchewan have joined in the idea of much stronger provincial powers. Indeed Ontario, many, many years ago in the 1920s, probably coined some of the strongest notions of separatism and self-determination.

But I think there is no even record on this and no consistent record. For some provinces the amount of decentralization depends on where they are in the business cycle and whether they feel confident about going it alone in a number of areas, knowing that perhaps there would not be federal funding if they took over the portfolio entirely. For some provinces, the prospect of retaining a national market free of barriers policed by federal standards perhaps is very attractive. You can imagine the eastern provinces strongly support that.

Again, strictly looking back at the history, one would want to say Quebec is certainly well out front on this issue and then in behind from time to time you get a number of provinces that are supportive of greater decentralization. Consistently though, one would want to say the eastern provinces have been the least willing to contemplate something that would diminish the federal presence in a lot of their portfolios.


Mr Offer: I just have a short follow-up question. Much of the discussion, though not all, I recognize, has always centred around this whole division of powers. In your presentation you alluded to the amending process, the 7-50 rule, for any change in the division of powers. Is it your opinion that potentially some of the questions, the issues, the change in the division of powers, whatever they may be, when finally agreed to might be entertained with the current amending formula?

Dr Careless: The last bit was?

Mr Offer: Might be able to be entertained and addressed with the amending formula as it presently exists.

Dr Careless: This is in the realm of speculation. The words "amending formula" are, of course, thankfully a very large term within the present Constitution, so one can contemplate a number of bilateral changes that might possibly be made. When we came before you the last time, Chris addressed the prospect of that happening.

The 7-50, I think a number of observers would feel, is still a reasonable prospect in a number of functional areas. Again, you would have to decide if you would be happy leaving Quebec out of an amendment. But I think the commentators who are now looking at the amending formula are more concerned about the unanimity dimension of that rather than whether the 7-50 has ceased to be of any relevance. As I say, there are other elements. The right to opt out is, I think, particularly interesting and the bilateralism, the one or two provinces getting together, might offer a good prospect.

Mr Winninger: On that issue of the amending formula, I was reading a paper Roland Penner gave in April in Winnipeg dealing with that and where do we go from Meech. His suggestion seemed to be that since unanimity is almost impossible to achieve among the first ministers they should, before they sit down at the first ministers' conferences, build an informal consensus but, with respect to all possible matters that can be resolved through the 7-50 rule, concentrate on those areas for change. Otherwise, change might be beyond our grasp. I wonder if you have any comment on that approach.

Dr Careless: I think the prospect of first ministers getting together, of course, stumbles against the problem Chris mentioned, the idea of executive federalism. Whether first ministers would include Quebec is going to be problematic as a general exercise, I think, this time around.

When it comes to first ministers getting together to agree to things in advance, probably that kind of work will have to be done in any event, but it will in the long run be the legislatures that will have to be confident that the resolution they are entertaining, either unilaterally or in conjunction with someone else, is going to get support in the same wording right across Canada. That may be as much a challenge to the legislatures to think about where the other legislatures are coming from at this present time.

Mr Malkowski: Would you mind answering two things I was thinking about? The first is, how could we then develop a relationship between Quebec and some of the other provinces? Where are the feds in it if they get defensive? Are language and culture and those divisions under federal leadership, or where will the provinces play in that? There seems to be this tension when it comes to language and culture, if you would not mind addressing that.

The second issue is the aboriginal land claims currently outstanding in Quebec. Do you have a sense at all of the role the aboriginals will have, that they want to see Canada remain together because then they are stronger? What would happen if Quebec were to become sovereign to those land claims?

Dr Careless: The first question, if I understand it, was to what extent the federal government can be an intermediary to Quebec in the matter of language and culture. Do I have that right, sir?

Mr Malkowski: No. It was how Quebec is defensive. They are not co-operating with other provinces; they prefer to talk directly to the federal government. Why would this happen? If Quebec were to become, let's say, more motivated or more independent, how would that influence the federal government in terms of leadership when it comes to the other provinces on these issues? What would happen on that?

Mr Bredt: That is a very difficult question to respond to. Let me give my best shot at it. I think currently the formal position of the Quebec government is that it will only talk with the federal government on constitutional matters and will wait until they get a formal, binding offer from the federal government. Informally, Premier Bourassa has been meeting with other premiers including Premier Rae, and certainly raising with Premier Rae his concerns not only about the process but also about the substance. He has also raised it with the other premiers he has been meeting with.

It is very difficult to know how the Quebec process will roll out over the next month or so. Most commentators have suggested, and certainly the Premier has suggested, that the federal government cannot speak for all the provinces and the provinces are going to have to have a role in any upcoming constitutional negotiations.

Turning to the second question, which was the issue of the aboriginal groups in Quebec --

Mr Malkowski: How would Quebec react then? If there is an agreement for sovereignty, what would happen with the land claims then? Would that help or would that force Quebec to reconsider in terms of keeping Canada together if it comes to land claims?

Mr Bredt: With respect to the land claims, it is quite a complex situation in Quebec. Existing claims have been settled; for example, there is a James Bay agreement that was entered into with the Cree that has quite extensive provisions. There are other land claims outstanding that remain unsettled.

Within the aboriginal community in Quebec, some of the aboriginal groups are French-speaking and are more sympathetic to some of the nationalistic aims. Other aboriginal groups are English-speaking and are perhaps less sympathetic. The overriding goal of all the aboriginal groups in Quebec, like aboriginal groups in the rest of Canada, is to achieve a meaningful form of self-government, and how that would be realized in the context of Quebec sovereignty or in a renewed federalism is one of the issues this committee is going to have to grapple with.

The Chair: Mr Bisson. I think I would like to carry on with the presentation if we can.


Mr Bisson: I basically have a very difficult question but I am looking for a short answer. You gave a fairly good historical perspective in regard to the whole question of the division of powers. It has always struck me somewhat that when you listen to different regions of the country speak, sometimes they are speaking the same message when it comes to that whole question. I am making a very bland statement, but basically that is the summation.

The other point is that probably those who stand the most to gain from trying to get more powers from the federal government tend to be the ones who do not want to do it. It seems to be an adverse position.

I have been following out west what has been happening, what the provincial governments out there or the people are feeling in regard to that question as well as Quebec. Where exactly are the maritime provinces on that question? Where are they coming from at this point?

Mr Bredt: The general position of the maritime provinces is that they are very much concerned about a weakening of the federal government. That was clearly the view expressed by Premier Wells during the Meech Lake process and if you examine the statements of the other premiers, Ghiz in Prince-Edward Island, Cameron in Nova Scotia and McKenna in New Brunswick, they are very much concerned about turning the federal government into a post office.

Mr Bisson: We have lost that one.

Mr Bredt: In terms of all the provinces, the maritime provinces are very dependent upon the equalization payments they receive from the federal government and they are concerned that if the federal government is weakened, their ability to benefit from equalization might be weakened accordingly.

Mr Bisson: Can you surmise the western position?

Mr Bredt: The western position could change quite rapidly depending upon electoral outcomes in several of the provinces there. There are two landmarks I could give to you. Last year, a co-ordinated position was developed at Lloydminster among the premiers essentially calling for a devolution of certain economic powers to the provinces along with what you call equalized-tax points from the federal government; a turning over powers plus money to finance the powers.

At the most recent western premiers' conference, there was very much a shifting. Premier Filmon from Manitoba was less keen on this idea, as was Premier Devine. Again you see the split between the provinces that are benefiting from equalization and those provinces that are contributing. I think that gives you a quick thumbnail sketch of the west.

Dr Careless: I would just add one qualification or observation. Sometimes it is a little too simple to talk about the choices centralizing or decentralizing. As Premier Rae said, even he could understand and entertain decentralization if one could sustain a number of national standards. Therefore, when you think of the Maritimes or the west, there may be other ways or a variety of ways by which they can get more control over the programs they own or that they think they should own more thoroughly, at the same time sustaining some degree of national entitlement.

Mrs Y. O'Neill: Have there been any changes in any initiatives or attitudes since Cameron has come on the scene in Nova Scotia? Wells seems to be not quite as outside the circle now. That is an observation I have from a distance.

Mr Bredt: Maybe I will ask Debbie Gillis to respond to that. She is our eastern representative and knows the east in a fair bit of detail.

Ms Gillis: I think there have been some change since Premier Cameron took over the leadership in Nova Scotia. You are right to say that Wells is not quite as outside the loop as he was when Premier Buchanan was the leader, in part because Cameron has made a very conscious effort to try and bring Wells in. He is very interested in developing a regional approach to both constitutional and economic issues and because of that has tried to include Premier Wells in a common-cause situational position. Premier Wells is not co-operating with that; he is still more intent on developing his own position, which is different than some of the other three leaders.

Dr Cameron: It is a great pleasure to be before the committee again. I am tempted to say I am being offered up as comic relief, although I think that is unconscious because I may not be that funny. But let me say it is a change of pace, because we will be looking a little more at the future than at the past. If I were giving a title to the talk today, it would be Realistic Options for Constitutional Reform.

I will talk first about options in general and second about realistic options. I hope you will forgive me. As I thought about the presentation, I thought I should say at the outset that it will be a trifle discursive, not to mention perhaps even meandering. The image that came to mind as I thought about the presentation was rather that of the trail that cattle make when they are coming from the back 40 to the barn at the end of the day. There is, I think, if you followed those trails at any point in your life, a kind of bovine logic that is evident in the way they proceed. There will be, at least I hope, that degree of logic in what I am saying today. I should, though, assure you that I am going to proceed at a snappier pace than that of that cow.

Let me start with some comments about the options in general. There has been in the months following the failure of Meech Lake a lot of discussion about options, and the thinking, at least in the earlier stage of the process -- I think this is fading to some extent now and it is time it should -- has focused on certain categories that everybody used for organizing their thinking. C. D. Howe, to use one example, in a colloquium last fall organized the options that they wanted to explore into two heads. One was federalist options and the other was what they call "breaking the federalist mould," which was a nicer way of talking about the country breaking up.

Under the federalist options, they described the status quo centralization, rebalancing Confederation, decentralization and asymmetrical federalism, which is a rather heavy-duty, 50-cent word for a fairly straightforward idea. We used to talk many years ago about special status for Quebec, and that became a no-no. We then invented "distinct society" and that now is a no-no, so we talk about asymmetrical federalism. The words get longer and more complicated, but the meaning is essentially the same.

Under the heading of breaking the federalist mould, they identified sovereignty-association, the Parti québécois proposal, a Canada of regions, the idea that there might be five sovereign regions -- and outright independence for Quebec. That is a fairly straightforward kind of approach to organizing some of these. I think those are theoretically possible. I think it is true to say that you can imagine them actually happening. In other words, you could imagine an overall general decentralization of power from the federal government to the provincial governments, or centralization in the reverse direction.

You can imagine a substantially different treatment for Quebec as the focus of constitutional change, where one would address the particular concerns of Quebec and try to maintain the other relationships fairly stable. You can imagine full-scale independence, and of course you can imagine -- in fact, this is the one I find easiest to imagine -the status quo. In the months following Meech Lake, people, especially in Quebec, were fond of saying the status quo is dead, which always amused me, because as far as I know, the status quo is the only thing that is alive and everything else is dead or yet to be born.

I was interested too in a comment that a Québécois was making at a recent conference where it showed the shift of opinion as people began to recognize the complexity of making substantial changes. Where eight months ago, as I say, many people were talking about the status quo being dead, in regard to the Québécois who was making the presentation a couple of weeks ago, talked about -- one of the headings of his discourse was "The Weight of the Status Quo." There was a kind of grudging recognition that it is heavy, it is there and it is not that easy to change it.

What I want to do is complicate the issue a little bit, having laid out those general options, because I think there is an important sense in which -- when you start examining it closely, and Tone was touching on this -- those are not really likely to be options in the sense of the practically implementable outcomes of the debate we are facing, but several of those will likely be elements of options. In other words, they can be mixed and matched in different kinds of ways. When you talk about rebalancing Confederation or modernizing federalism, that is usually what you are getting into. That is the kind of grey face of reality where it is rather untidy, a bit of this, a touch of that, a dash of something else. That is the way, when you start getting down to cases, we have done our constitutional work.

For example, one could imagine some decentralization of social policy and perhaps of culture and some stronger national expression of the economic union, some special recognition of Quebec's distinctive character and perhaps a degree of institutional reform: reform of the Senate thrown in and much of the rest left the way it is. That is an alternative that presents itself to the mind at this stage and it really draws on a variety of these more simple options that have been described.


So much for options. Now to say a bit about realistic options. What I would really like to do is look at some of the characteristics of what are likely to be realistic options. My principal focus is the relationship between Quebec and the rest of the country, but I think what I am going to say applies in greater or lesser degree to the various issues we are wrestling with, whether it is western alienation or discontent in the Atlantic region or whatever.

When it comes to realistic options, "realistic" is an important word to consider here. It means many things, but I would mention two. The first one might mean realistic in the sense that the alternatives being presented are deemed to be practicable or pragmatic, that they can be put into effect. The second way in which one can speak of realistic is in the sense that they are to the point, that the shoe pinches, so what you are going to do is provide a new, better-fitting shoe. You are not going to provide an arm-sling. So it is not beside the point; it is on the money. It addresses the problem that really has to be tackled.

Just a comment on "realistic" in the first sense, practical or pragmatic. When people talk about pragmatic reforms and pragmatic proposals, what they typically mean I think is minimal change, modest change, small amounts of adjustment where you make changes and then you see how it goes and you make further changes. It is obviously a very sound way of proceeding in many circumstances, but I do think it is important to remember that in our present circumstances we have to consider practical and pragmatic in the context of our judgement about the reality we are confronting. It seems to me if you are facing, as a country, a genuine and fundamental crisis, then pragmatic may not mean minimal change, it may mean fairly significant or dramatic change, and I think one needs to ponder that question quite carefully.

I think it is one of the most difficult judgements that people in politics are confronted with from time to time, and it is my observation that the landscape is littered with empires and states and corporations whose leadership have got that question wrong and made the wrong adjustment, believed that a little change is all that is required, and then they are wiped off the map. Alternatively, they believe that dramatic change is required, when in fact perhaps it was not necessary and very much goes awry.

I would like to talk more about realistic in the second sense, that is to say, to the point, effective in addressing the real problem and in assessing the realism of an option. From this point of view, it seems to me that you have to make a judgement about the nature of the issue you are tackling. If you understand the nature of the problem and your option is conceived effectively to address it, it is realistic. In looking at realistic options, I would say this depends heavily on what the real problem is. So the question then becomes, what is the real problem? What are we facing in this country at this stage?

To clarify the large point I want to make, I would just by way of illumination advance a heretical proposition -- just for discussion you understand. I am not necessarily serious about this, but to clarify the point, I think it is possible to make a very good, convincing case, at least in a debating situation, that there is nothing fundamentally wrong with our constitutional arrangements. You see why I say heretical. There are problems with the way the Constitution works here and there, but there is no substantial element of the Constitution that is so out of whack with the realities of Canadian life and day-to-day practice that it absolutely cries out for change. This is the heretical proposition I am advancing.

You could, if you look at it from that perspective, say that what we have in fact is a Constitution that has been flexible and highly adaptable to changing circumstances, perhaps best exemplified by its capacity to accommodate aggressive nationalism in Quebec and a very rapid development of Quebec's society and Quebec's economy. That has all been done within the framework of the existing Constitution and really without benefit of constitutional change, because I think there is a lot in the fact that when you look at the constitutional changes that have been made, for the most part, they in fact are not responding to the traditional concerns certainly of the government of Quebec and the National Assembly of Quebec. Yet there has been this really very impressive evolution of Quebec society and its economy.

The immigration agreement was signed with the federal government after the Meech Lake accord collapsed, which is again providing an adjustment in terms of the present and future needs with respect to multiculturalism and immigration in Quebec. There have been opting-out arrangements that have been manufactured and implemented as seemed necessary in the circumstances, again without constitutional change. If you ask what the real problems relating to aboriginal peoples are, there are some very painful and difficult issues that aboriginal peoples are wrestling with relating to their social and economic life and levels of unemployment and land claims and so on, and some of these do not require constitutional attention to be tackled.

Even in the case of western Canada, the concern about alienation has not declined. If anything, it has decreased since 1984, when one has had very powerful western representation in the House of Commons. It started to grow rapidly during the Trudeau period, when there were fewer and fewer representatives from western Canada in the government. It was a massive change from that point of view in 1984, yet alienation still prevails. So if you say, "Well now, how is Senate reform going to transform this situation?" it is possible at least to imagine that the issues go deeper into our cultural and social soil than will be reached by even a change to the Senate.

One could further argue that Canada is in fact plagued with significant problems but that they are not in fact mostly constitutional in character. This is, as I say, in the present context I think, virtually a sacrilegious proposition to make, and since I venerate religion, I will not make it.

But what I wanted to get at is to set the stage to raise a question that, if you assume that is true or that there is some truth in that, you still have to accept the fact that we are in a hell of a mess. People are talking Constitution all the time and there is some kind of problem out there that to talk about means people talk about the Constitution. That is the vocabulary that is chosen to try to sort out the difficulties we are having.

How can that be? I think it is possible to have circumstances in which there is nothing particularly amiss in the workaday arrangements of a situation and yet the relationship has gone sour. I think this is a substantial part of what we are confronting as a country, and in the case of Quebec vis-à-vis the rest of the country, I think some of the dimensions of this are that there is a different conception of the association itself that composes Canada and a different emphasis on what is important as between Quebec and other parts of the country. There are radically different historical interpretations of what happened in the past and what it means and its bearing on what happened today.

There are clear feelings of rejection and alienation that are part of this picture and a more generalized phenomenon that we are wrestling with, perhaps partly because the internationalization of life is that, really, all across the country I think there are declining levels of loyalty to national symbols and national institutions. So what this raises to my mind is the mythological dimension and the symbolic dimension to what we are talking about.


Stefan Dupré, in a recent paper, has talked about the myth of imposition and the myth of rejection. With respect to the myth of imposition, he is talking about the arrangements of 1982 where the notion is that Quebec had had imposed on it a constitutional regime that it did not accept. Clearly, in a technical sense, the National Assembly resisted that, and was against the 1982 arrangement. On the other hand, Prime Minister Trudeau was from Quebec, and there was a very strong representation at the federal level from Quebec, so there is another argument that can be made on that.

Again with respect to the myth of rejection, with Meech Lake Quebec made an offer, came forward with, as I say, the most modest set of proposals in living memory, and the rest of the country examined it, debated it, resisted it and finally turned it down. When you listen to the way people talk in Quebec -- a slap in the face, a humiliating rejection, and so on -- it is very directly linked to what we were talking about before, the idea that now Quebec is waiting for binding offers from the rest of Canada. I think the image there is of people who has been rejected, and they say: "Well, we're not going to go and do this again. You come to us this time. You make us a proposal, and we re going to be the last in. We are not going to be the first in with whatever arrangements are made."

The myth in this sense is not that it is false. Most myths are ways a society looks at itself and, I think, are half true. They are perceptions, ways of interpreting the past, ways of understanding the present, but their existence at the heart of our debate is central.

What I am getting at is -- and it seems to me important in looking at the real problem and looking at real options -- that one has to think, to what extent are we dealing with symbolic conflict, or a conflict that is working itself out at the symbolic level, and to what extent are we dealing with substantive, concrete problems, shoes pinching someplace that need to have a shoemaker adjust them?

My own perception is that there are both of those dimensions present, but in fact, when push comes to shove, I would say that the symbolic or mythological side of it is more important than the substantive.

Having said that, I guess my final comment would be, to the extent that is true, the more the symbolic dimension is at the core of it, the more difficult it is to resolve, not the easier. If you look at the Meech Lake experience, people in the rest of the country outside of Quebec at the beginning criticized every clause in Meech Lake when it started to be discussed. There was hardly a single word in the Meech Lake agreement that was not attacked by somebody. When you got to the end of the process, it started to get quite simple. At least, this is my perception.

In Quebec, the test element in this was the "distinct society" clause. Would it be accepted or would it not? In the rest of the country there were increasing concerns about that "distinct society" provision and what it meant, and whether it was an appropriate way of representing the association in this country and so on. What we were doing was dealing substantially with this symbolic dimension.

My concluding observation would be that it does seem to me that in looking at realistic ways of finding a path through these difficulties, it is important to bear in mind both the symbolic and the substantive dimension, and always, when one looks at specific concrete proposals for reform, to pass that through the symbolic net as well as the substantial net. Are we effectively satisfying some of the sense of grievance that exists as well as dealing with some concrete problems that have been specified?

The Chair: Thank you very much. Before I open for questions, let me just be clear, Mr Bredt. Are there any other parts to the presentation, or is that it?

Mr Bredt: That is it.

The Chair: Okay. I am just conscious of the time, and I want to make sure we got everything.

Dr Cameron: That should surely be enough.

Mrs Y. O'Neill: Mr Cameron, I just want to make a couple of observations before I ask my question. It is only lately that I am beginning personally to understand the significance of the choice of "National Assembly" as the title of the Legislature of Quebec, and I really feel somehow I am finally understanding what that means.

Another personal observation that I have, I just wish that much that is being said by all of us now, certainly by those who are not even in government, could have been said last year. It would just have been so good to have gone into June 1990 with the kind of background and discussion we have had in 1991. Those things were not possible.

I find what you say, though you did not have the humour that you promised, quite uplifting, and I wonder if you feel-and you certainly have a lot more interaction with people across the country than we do, or than I personally do for sure -- that what you have said is being talked about. I think it is so significant that you are suggesting there really is the tool, that it really is not constitutional as such in the same way that many of us understand it to be.

I think the word "constitutional" is used by a lot of us because we know it is important. The word "Constitution" puts it at a new level of discussion, and it somehow puts it into another arena that we hope -- and I am saying this with certainly a lack of vocabulary -- the important people can fix up. If it is something else, then who fixes it up? I am being extremely simplistic, but I am trying to understand what you said, and I have a feeling that you have capsuled the real crux of the matter, and I congratulate you for that.

Could you say a little bit about how widely accepted what you have said is, or do you know that?

Dr Cameron: It would be my perception that what I am calling -- I do not know if these are the right words -- the symbolic dimension to this debate is not that well understood or not that much paid attention to in the debate, either in Quebec or outside of Quebec. One of the most interesting essays on this is by a fellow called Christian Dufour, entitled The Quebec Challenge. It is quite different in its analysis from almost anything else that I have seen, and it focuses very much on that issue. I think this is an extremely difficult dimension of a conflict to wrestle with, to capture, to deal with and even to recognize, because you tend to live within your own world of symbols and understandings.

We are taught our history. That is real as far as you are concerned, and unless you are an expert in the field, you may not be at all aware of the fact that the terminology used in Quebec is different and the image of the event is different. it is fairly obvious that the conquest is a profound event in Quebec society. I think less and less is it something people spend their time thinking about in English-speaking Canada. For example, a political scientist who was a Quebecker gave a speech at the University of Toronto and chose as his title "The Consequences of Meech Lake Overcoming the Conquest and Lord Durham." You just think about that. What kind of historical reference points would English-speaking Canadians use in trying to address this sort of thing? I do not think it is very well understood. We all live within our own world, and then we pass these miscommunications back and forth, so it seems to me that is a very big challenge.

As I look at the situation we are confronted with now, I think there is a serious risk that we will look at this situation as requiring a package deal. That is what we did in 1982: a big, complex group of changes all at once. That is what we tried to do at Meech Lake, and if we are not very careful, I think we may end up having another run at that in that fashion. The more that one can turn this issue into one that can be addressed by a process, not by a single massive act of creation, the better off we are going to be, so if there are ways over the coming winter in which one can offer some specific, very limited constitutional changes, it seems to me that would be desirable. If there are ways in which you can begin to deal with non-constitutional problems this country is facing and show that the country can move and can change, that also is desirable.


In that area, a massive change in the federal system is already under way whether we like it or not. The federal government's capping of the transfers for health and education -- by about the middle of this decade Quebec will come out the other end; there will be no more federal dollars coming for health in Quebec. The way in which the federal government has established standards nationally in the health care field has been by the power of the purse. We are already close to facing that issue anyway.

I think if the federal government showed some interest in a major review of how one copes with this problem and looks for ways in which the provinces can take over full control of these areas but in the context of some commitment to national standards, it is not a constitutional issue as such, but it is a very big issue of policy reform.

Mr Bisson: It is an excellent observation, because you are perfectly right in saying that. A lot of this stuff is actually non-constitutional, more in regard to laws and regulations at the federal level. It is a good observation.

Mr Winninger: I appreciated your analogies to the cow trail and footwear. I think the two have something in common for the purposes of our constitutional direction, because when you are following a cow trail, you have to watch your footwear and how you step.

I can think of some ways in which the exercise is more than largely symbolic: for example, native right to self-government, which is not entrenched in our Constitution and depends so much on the political will of the particular province in how it is observed or, another instance, a concern with the "notwithstanding" clause. I know you were a little facetious when you put forward your heretical proposition, but are these not more than largely symbolic, more than minor adjustments in the way we fine-tune our Constitution?

Dr Cameron: In the present circumstances it is clearly a romantic view. The Constitution is the most fundamental document in the land. The reason it is difficult to change is that very reason. It seems to me there ought to be some discipline in the system so that we do not leap immediately to, "We've got a problem, so let's change the Constitution."

I think this is a worrisome trend in Canadian society. One of the difficulties it creates is it loads on to the Constitution a whole bunch of things that may not necessarily have to be there or are only there properly in part. Sure, there are areas where we need to address constitutional problems, but to some extent my concern is that it relieves the pressure on constitutional issues sometimes or shifts the focus to constitutional issues. Given that they are the most difficult things to bring off -- we have demonstrated that by not succeeding with Meech Lake; it takes us a long time to make any changes; the amending formula was up for discussion for 20 or 30 years -- it seems to me that just as a matter of common sense we ought to be putting a whole lot of effort into the areas which are easier to change and do not require constitutional amendment, which is not to say that constitutional amendments in some specific areas are not required; they clearly are.

I recognize that we are now into a constitutional discourse where the major conflicts in the country are going to have to have a constitutional resolution among other resolutions to them. I just think that is the way it is structured. But it does seem to me it is important to bear this whole other dimension in mind.

The Chair: Thank you very much for coming and spending some time with us. It has helped to refocus our thoughts somewhat.

We are adjourned until next week.

The committee adjourned at 1805.